Opinion
No. 10-07-00021-CR
Opinion Delivered and Filed January 30, 2008. DO NOT PUBLISH.
Appeal From the 66th District Court, Hill County, Texas, Trial Court No. 34,206.
Before Chief Justice GRAY, Justice VANCE, and Justice REYNA. (Chief Justice Gray concurs only in the judgment for the reasons noted in his concurring opinion in Villanueva v. State, 209 S.W.3d 239, 249-252 (Tex.App.-Waco 2006, no pet.) (Gray, C.J., concurring) and his dissenting opinion in Garner v. State, No. 10-05-00218-CR, 2007 Tex. App. LEXIS 4246, *16-20 (Tex.App.-Waco May 30, 2007, pet. granted on Court's motion) (Gray, C.J., dissenting).
MEMORANDUM OPINION
Teresa Tina Towles pleaded "no contest" to murder, and a jury assessed her punishment at thirty years' imprisonment. Towles's appellate counsel filed an Anders brief contending that the appeal presents no issues of arguable merit. Towles has not filed a pro se brief or other response, though she was notified of her right to do so. We will affirm. "Whether entered with or without an agreed recommendation of punishment by the State, a valid plea of guilty or nolo contendere `waives' or forfeits the right to appeal a claim of error only when the judgment of guilt was rendered independent of, and is not supported by, the error." Young v. State, 8 S.W.3d 656, 666-67 (Tex.Crim.App. 2000); accord Guidry v. State, 177 S.W.3d 90, 93 (Tex.App.-Houston [1st Dist.] 2005, no pet.). In the Anders brief, Towles's counsel reviews the procedural history of her trial and the evidence offered at trial. Counsel identifies two defense objections which were overruled by the court. Counsel suggests that neither ruling was an abuse of discretion. We agree. Towles's first objection involves a challenge for cause which the court overruled. Harm from the erroneous denial of a defense challenge for cause occurs:
(1) when a defendant uses a peremptory challenge to remove a veniremember whom the trial court should have excused for cause at the defendant's request, (2) the defendant uses all of his statutorily allotted peremptory challenges, and (3) the defendant unsuccessfully requests an additional peremptory challenge which he claims he would use to remove another veniremember whom the defendant identifies as "objectionable" and who actually sits on the jury.Saldano v. State, 232 S.W.3d 77, 91 (Tex.Crim.App. 2007). Because of the numerical position of the veniremember whom Towles challenged for cause, it appears likely that Towles exercised a peremptory challenge to prevent his service. However, there is nothing in the record to indicate that Towles exhausted all of her peremptory challenges or requested more to remove another objectionable veniremember. Thus, Towles cannot establish harm from any error in the denial of her challenge for cause. See id. Towles's other objection was to the relevance of the State's cross-examination of her father with a "have-you-heard" question regarding Towles being fired by a trucking company because of a positive urinalysis. Towles's father testified that he did not know the circumstances under which her employment with that company ended. However, the State asked the same question of the next defense witness (Towles's son) without objection. He testified that he did not know Towles had been fired because of a positive urinalysis but it did not surprise him because he knew that "she's a drug addict." Any error in the admission of evidence is rendered harmless if the same or similar evidence is subsequently admitted without objection. Chamberlain v. State, 998 S.W.2d 230, 235 (Tex.Crim.App. 1999); Cole v. State, 194 S.W.3d 538, 545 (Tex.App.-Houston [1st Dist.] 2006, pet. ref'd). In the same manner, any error in permitting a particular question to be asked of a witness is rendered harmless if the same or a similar question is subsequently asked and answered without objection. Thus, Towles cannot establish harm from any error in permitting the State to cross-examine her father regarding the termination of her employment because of an alleged positive urinalysis. Our independent review of the record reveals no issues of arguable merit. Therefore, we affirm the judgment. Counsel must advise Towles of our decision and of her right to file a pro se petition for discretionary review. See Ex parte Owens, 206 S.W.3d 670, 673-74 (Tex.Crim.App. 2006); Villanueva v. State, 209 S.W.3d 239, 249 (Tex.App.-Waco 2006, no pet.); see also Meza v. State, 206 S.W.3d 684, 689 n. 23 (Tex.Crim.App. 2006). We grant counsel's motion to withdraw, effective upon counsel's advising Towles of our decision and of her right to file a pro se petition for discretionary review. See Meza, 206 S.W.3d at 689 n. 23; Villanueva, 209 S.W.3d at 249.
Towles did file a pro se motion for an extension of time to file a brief or response, but this motion was struck because Towles failed to provide proof of service despite being advised in a letter from the Clerk of this Court that service was required and that failure to comply may result in the striking of the motion.